Privilege Claim and Roberts Memos:

An L.A. Times article says:

The White House is citing the attorney-client privilege as the basis for refusing to reveal memos written by Supreme Court nominee John G. Roberts Jr. when he was representing the government before the high court. At the time, Roberts was the top deputy to Solicitor Gen. Kenneth W. Starr.

But it is not clear that this legal privilege shields the work of government lawyers from the eyes of government investigators — thanks to a legal ruling won by Starr himself, when he was independent counsel investigating President Clinton.

Usually, the attorney-client privilege protects private lawyers from being forced to reveal what their clients told them. It also shields their notes and memos from prosecutors. This rule of secrecy is seen as vital to the adversarial process.

But in 1996, Starr challenged the notion that White House lawyers who worked for Clinton could invoke the attorney-client privilege when Starr sought notes they had written.

Starr argued that the lawyers worked for the people of the United States, not for the president.

Democrats are making a similar argument in Roberts' case: that the solicitor general represents the public interest.

The dispute was one of many legal tussles during Starr's six-year investigation of the Whitewater matter. It resulted in a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did.

"We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege" when prosecutors or congressional investigators are seeking information, the U.S. Court of Appeals in St. Louis said. "Even if we consider a congressional investigation to be an adversarial proceeding, the only harm that could come to the White House as a result of such an investigation is a political harm." . . .

Two questions for our readers:

1. Is the White House really claiming an attorney-client privilege, in the sense of saying that it has a legal right to withhold the documents? I had thought that it was simply saying that such documents shouldn't be turned over, since turning them over would deter some future government employees from giving the most candid possible advice. That's an argument that applies to nonlawyer employees as well as lawyer employees; to the extent it's translated into a legal entitlement, it would sound more like executive privilege than attorney-client privilege; but in any event, it's not an assertion of a legal right to refuse to disclose information (in part because no such assertion of legal right is necessary, at least yet, since there's no actual subpoena from a Senate committee demanding those documents).

But perhaps I'm mistaken — perhaps the White House has indeed said the documents are legally privileged, under the attorney-client privilege. I've seen some press accounts characterizing the White House's actions this way, but I wonder if there are any quotes from White House statements that make this clear.

[UPDATE: Commenter Bryan DB kindly pointed me to the Transcript of the Jul2 6 White House press briefing, which says in part, "MR. McCLELLAN: Well, I'm talking about that this is attorney-client privilege, and it relates to the deliberative process." So the White House is indeed claiming that the documents are covered by the attorney-client privilege; many thanks for the information!]

2. As I read the Eighth Circuit case that the article cites, the court held only that there's no government attorney-client privilege in criminal cases, where information is demanded by the grand jury. The court's reasoning focused heavily on criminal investigations, and it said that it "need not and do[es] not decide" what should happen in civil cases; this suggests that it also didn't decide what should happen in other noncriminal investigations, such as a Congressional investigation that wasn't focused on criminal conduct.

The language that the article quotes about congressional investigations focuses (as best I can tell) on a very different subject: whether the work product privilege (a different privilege) applies under conditions when the work product is generated in anticipation of a congressional investigation.

So while the logic of the opinion might possibly be extended to Congressional subpoenas, even ones that are unrelated to investigation of criminal wrongdoing, it seems to me that the court's holding doesn't really apply here. There was "a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did," but it was not broad enough to hold anything about rights to keep secrets vis-a-vis Congressional inquiries. Can readers who are familiar with this area of the law, or who have read the Eighth Circuit case, tell me whether I'm mistaken?

I should note that none of this relates to whether it's good policy or good politics for the government to refuse to disclose those memos; I'm speaking here just about (1) whether the White House has stressed a legal attorney-client privilege, as opposed to the executive privilege or policy concerns making the release of the memos improper, and (2) whether the Eighth Circuit decision (or other decisions) really apply to Congressional investigations.

I'd love to hear people's responses in the comments. Thanks to reader Scott Weber for the pointer to the L.A. Times article.

I won't speak to (1), but I have read the Eighth Circuit's opinion, and I agree with Prof. Volokh as to (2). The court essentially concluded that the attorney-client privilege is not absolute where government attorneys are involved, because, among other things, they have a duty not only to the "client" they render advice to but also a duty to the Justice Department to report criminal conduct, a duty to the general public in some sense, etc. So if a privilege exists, it can be invaded in some cases depending on how strong the competing interest is.

The Eighth Circuit held that where a grand jury is investigating a crime, the public interest is very strong and overcomes any claim of attorney-client privilege. On the other end of the spectrum, the court seemed to approve of the line of cases that have upheld the attorney-client privilege where documents are sought by civil litigants in actions against the government.

The case where a Congressional committee wants to review documents in connection with a pending nomination lies somewhere in the middle. In fact, there is a line in the Eighth Circuit opinion that basically says, where a coequal branch of government is the one seeking the documents, there is no bright-line rule that can be applied to cover all cases.
7.29.2005 2:31pm
John Steele (mail):
The Second Circuit recently upheld a strong view of governmental right to assert a/c privilege, in this case.

I think this area is far from settled right now. The conventional wisdom, fwiw, is that criminal and civil subpoenas will be treated very differently. Personally, I oppose the argument that governments lack normal a/c privilege rights, but it's a sprawling topic that is just now being addressed.
7.29.2005 3:03pm
Anonymous Law Student:
7.29.2005 3:34pm
Patterico (mail) (www):
Anonymous law student's link is to a post of mine, and I am very perturbed by the article's suggestion that the case directly covers requests by Congress, when in fact (as Prof. Volokh notes) it covers material created in anticipation of Congressional hearings.

If Roberts drafted any memos in anticipation of his confirmation hearings, those are not work product. If he drafted memos in anticipation of litigation by the Solitior General, they would be -- and probably would be covered by the attorney-client privilege as well.

The language quoted by the LAT reporter actually supports the application of the work product doctrine, though it is portrayed as undercutting the application of the attorney-client privilege any time documents are requested by Congress.

The reporter needs to have a reliable expert hold his hand and walk him through the opinion.
7.29.2005 3:45pm
frankcross (mail):
I think Eugene's right about (1), but I think the case for privilege is weak. Because an attorney for the government represents the people as a whole. There's an analogy to this in corporate law. The company cannot assert the privilege in a suit brought against it by shareholders (though this access is subject to some conditions, of which similar might be imposed here).
7.29.2005 4:17pm
Researching Intern:
Check out Fred Thompson and Orrin Hatch's Statements on attorney-client privilege from December 20th, 1995 in the congressional record ... they both seem to think that the government should not be able to invoke attorney-client privilege to conceal documents...
7.29.2005 4:20pm
John Steele (mail):
frankcross, I don't think there's much support for the claim that a government lawyer represents the people as a whole. The more typical dispute is whether the government lawyer represents just one agency or the branch that agency rolls up into, or the government as a whole. As I say, this is a developing area, but the "represents all the people" argument is, I believe, not correct.
7.29.2005 4:30pm
Bryan DB:
Eugene, as to your point #1:
"MR. McCLELLAN: Well, I'm talking about that this is attorney-client privilege, and it relates to the deliberative process." Transcript of White House press briefing from 7/26/05.

To point #2: To further Intern's comment, I don't believe Congress is required to recognize an assertion of attorney-client privilege (see FRE 501).
7.29.2005 4:41pm
frankcross (mail):
Ok, as a practical matter, people as a whole wouldn't really work. But it seems fair to say the lawyer represents the government as a whole. Generally, when the DoJ files a brief or complaint, isn't it styled: "the United States of America" v.
7.29.2005 5:01pm
John Steele (mail):

I apologize because I really should be providing more cites, like that new Second Circuit case I cited above. But, in my estimation, the "government as a whole" argument loses is less securely adopted in the case law than the "represents that specific agency" argument.

Now, a lawyer may represent an entity or person that has fiduciary duties to others, and that can sometimes cloud things, but that's not to say that the lawyer has an expanded definition of clients.

I think that criminal complaints and many civil suits are styled "USA v." but aren't tax suits, "Commissioner v." Besides, the pleading doesn't necessarily control the definition of the client. After the Hilary Clinton subpoena, a lot of people realized that this area is severely under-theorized. I will try to find some good cites for you, but may not get to it this afternoon.
7.29.2005 5:09pm
Dilan Esper (mail) (www):
First, with respect to whether the Bush Administration is claiming a privilege at all, I think the answer is, "not formally, yet". There hasn't actually been a formal request for documents; rather, you have folks on both sides mouthing off to the press. If and when there is a formal request for documents, the Administration will have to decide whether to comply and, if not, what privilege to claim.

That said, I think if the issue is executive privilege vs. lawyer-client privilege, it does appear to me that the Administration is making some sort of lawyer-client privilege argument (even if they haven't formally asserted the privilege yet) and the reason probably has more to do with semantics than substance-- "executive privilege" is something administrations try to stay away from due to its Watergate connotations.

But I think posters John Steele and frankcross get at the real mistake made in the reporting. I don't think anyone, including Ken Starr, thinks that there government lawyers providing advice to their ostensible clients never gives rise to a lawyer-client privilege, because their real clients are "the people". "The people" may pay their salaries, and some states may refer to the government as "the People" in criminal cases, but representing the government is not the same as representing the people.

The real question, therefore, if the Administration does make a formal assertion of lawyer-client privilege, is whether a lawyer in the Justice Department represents THE PRESIDENT or represents THE GOVERNMENT. I think there is a strong argument that a Justice Department lawyer represents the latter-- especially an official in the Solicitor General's office, whose job it is to defend the work of Congress as well as the Executive Branch. (Indeed, I think the argument is even stronger with a Justice Department lawyer than it is with a White House Counsel (Starr's case concerned that office rather than the Justice Department), who at least arguably represents the President rather than the entire government.)
7.29.2005 5:11pm
cfw (mail):
Looks like attorney work product privilege, if any privilege. If Fielding or Starr asks for an internal memo from Roberts, especially in connection with litigation (but not necessarily, at least in CA), why is that not attorney work product? Like asking a CPA for an expert damage analysis. Obviously a qualified (not absolute) privilege.
7.29.2005 5:18pm
Chinaberry Tree (mail):
A side question that is intentionally guilty of political naivete: Does anyone in this thread have a take on the propriety of a protective order of some sort? Political infeasibility aside (and I realize it's likely a nonstarter for political and practical reasons), is there a useful analogy here to trade secret or other cases (patent also comes to mind) involving compromises to protect highly confidential information? It would seem at the very least to skirt some of the "who does he represent" issues. I have trouble envisioning what such a protective order would look like, but since the ultimate merits decision here is an up/down vote (or, I suppose, a filibuster), it's not as though the situation presents a clear open courts problem.

In other words, a Democratic Senator may be able to claim that "the public has a right to know what Roberts wrote" with a straight face, but isn't the response that the material is really only relevant to the extent it influences that Senator's binary decision to support or reject the nominee, and the Senator's subsidiary decision regarding the level of support or opposition to offer?

Given that, couldn't we agree to a limited access/limited use setup? "Senators' eyes only" for this material, no waiver of privilege as to materials so designated (because the Senators are themselves "the United States" or some such); private questioning of the candidate as to questions raised by that material; not to be introduced into the public record without seeking preapproval, and only then on a high showing of necessity? The public "right to know" matters, but it's not an absolute in this case.

Given the truly nonpartisan character of this issue, long term, it would seem that some sort of compromise is appropriate. Senators get the access to the information, but are limited in their ability to use it for direct political gain. Because of leak problems, popular sentiment regarding open government, difficulties in adjudicating the "necessity" of public disclosure within a partisan forum, an open desire by the opposition to use the material as a public bludgeon, and the nonlawyer public's general difficulty in understanding the justifications behind the privilege concept, I doubt this could be done.

But it might be nice . . .
7.29.2005 5:43pm
John Steele (mail):

I agree that defining the client is critical, but I must respectfully disagree if you are claiming that a DOJ lawyer represents "the government" in a way that includes representing "the work of Congress." I don't think any case has read the client identity issue or the duties issues that broadly and, I respectfully submit, that wouldn't work at all. (Under that theory, wouldn't Congressional lawyers likewise support the work of the POTUS and DOJ?)

I agree that the DOJ lawyers do not represent the personal interests of the person who sits as preisdent -- a conclusion which is supported by the Hilary Clinton case. But it's not clear that waiving all privileges and producing the documents benefits the DOJ in the near term, and it seems to me that it would hurt the DOJ in the long term.
7.29.2005 5:51pm
frank cross (mail):
I haven't thought about this much, but John Steele obviously has. So I wonder about this hypothetical. In the course of representing an agency, the DoJ discovers that extensive criminality had occurred within that agency. Can the DoJ inform the President and/or Congress of this? I would like to think so.
7.29.2005 6:09pm
This is getting a little afield from the legal issue raised by Prof. Volokh, but it seems to me that a reasonable standard would be to allow Congress to review any documents that were reviewed by the Executive Branch in connection with making the nomination, and no further. Maybe the answer is that the President didn't review anything at all; so be it. But it seems like it would be an unfair result if the President were allowed to review these old memos to get a sense of the nominee's philosophy, and yet Congress was not permitted to review the same memos in connection with making its determination.
7.29.2005 6:21pm
John Steele (mail):
frank cross,

My first instinct is that the lawyer would have the same Model Rule 1.13 duty other lawyers would have: report the wrongdoing up the DOJ chain of command as appropriate with the seriousness of the matter. (I'd also need to see the DOJ's internal policies on reporting wrong doing.) Under your facts, the lawyer would presumably turn the matter over to the appropriate internal DOJ oversight function. But I do not think the DOJ lawyer could call Congress. It becomes a tough fact pattern if the lawyer has incontrovertible proof of significant wrong doing and, for example, the Attorney General himself covers up the issue.

We had a matter within the California system where a lawyer for the Department of Insurance concluded that the Commissioner, Charles Quackenbush, was selling out the insureds after the Northridge earthquake by letting stonewalling insurers get away with a paltry payment into what turned out to be reelection campaign commercials for Quackenbush. The lawyer, Cindy Ossias, turned over privielged materials to the Democrats in Sacramento. She was brought up on disciplinary charges by the State Bar. The Department of Insurance realized what she had exposed, gave her her job back and gave her a plaque. The State Bar finessed a difficult case by deciding as a matter of prosecutorial discretion that when the client -- the Department -- gives you a plaque and a party, there is no complaining party! Hence no prosecution was warranted.

But the conventional wisdom stemming from that event was that if the government lawyer finds wrong doing, the lawyer should head to the appropriate oversight officer. Ossias herself says that she's glad she revealed the fraud, but wishes she had gone to the Attorney General and not the state legislature. Shortly after the Ossias affair, we almost had an amendment to the California Rules of Professional Conduct dealing with confidentiality and government lawyers. It was a pretty well thought-out rule, but it didn't become law. I believe that Governor Davis vetoed it. More materials on that issue are here and here.

I want to add that it's not always easy to port Model Rule 1.13 into the government setting -- and in fact the comments to the rule say as much. For example, when I tried to analyze the Office of Legal Counsel memos from an ethics standpoint, I was surprised at the peculiar function of the OLC. There really wasn't a good analogy to lawyers for other kinds of entities.
7.29.2005 6:31pm
Kevin Murphy (mail) (www):
The case where a Congressional committee wants to review documents in connection with a pending nomination lies somewhere in the middle. In fact, there is a line in the Eighth Circuit opinion that basically says, where a coequal branch of government is the one seeking the documents, there is no bright-line rule that can be applied to cover all cases.

Hmmm ... this is fascinating, if true. How would one differentiate a request for Robert's work product for the solicitor general and a request for his work product while clerking for then-Justice Rehnquist? Different branches, but coequal is coequal. How is working for the SG more of a case of "working for the government as a whole" than clerking for a Justice.

I guess I just want to watch Leahy et all sue the Chief Justice for his documents....
7.29.2005 7:00pm
frank cross (mail):
Ok, I have more questions. First, my question in no way involved the attorney running to Congress, rather whether he or she could testify in a congressional investigation of the agency criminality.

Second, as I understand it you are arguing that the agency has privilege with respect to the individual lawyer but not the DoJ? I assumed it would extend to the whole Department? And if it doesn't extend to the whole Department, wouldn't telling a higher up at DoJ violate the privilege?
7.29.2005 7:11pm
Courtesy of Betsy's Page, I learned of a post at Beldar's found at Beldar's Blog Post

discussing a D.C. Circuit case he believes to be relevant. In re Lindsey 158 F. 3d 1263 (D.C. Cir.), cert. denied 525 US 996 (1998).

Not having read either the 8th Circuit opinion nor the D.C. Circuit opinion yet, I can only offer notice of the case and its source to the discussion.

Hopefuly, it will shed some more light on the correct answer to the question of privlege.
7.29.2005 7:51pm
Bryan DB:
In re Lindsey is the same issue as the DC Circuit case, and can be distinguished from the current situation by the presence (in the 8th and DC Circuit opinions) of criminal wrongdoing.
7.29.2005 8:30pm
frank cross (mail):
To me, the question is not whether there is a privilege, it is a question of against whom it may be asserted. Surely, there is a privilege in the conventional circumstance where the government is litigating against a private party, that party cannot depose the government's attorneys.

The question is whether the privilege can be asserted against entities of the government itself, such as Congress. Which is why the key is identifying the precise nature of the client, who receives the benefit of the privilege.
7.29.2005 9:18pm
John Steele (mail):
frank cross,

I meant to suggest that in most cases the privilege holder will be the agency, not the branch, the government-as-a-whole, or the people. So you'd turn to the internal rules of governance of the entity to decide how to run the issue of wrong doing up the org chart of the entity. I would bet good money that the DOJ has internal policies on that issue.

As others have suggested, whether that privilege can be asserted against a criminal subpoena, a Congressional subpoena, a civil litigation subpoena, or even an FOIA are different issues and we are slowly accumulating case law on those issues.
7.29.2005 9:42pm
Al Maviva:
Deliberative process privilege, a subset of executive privilege, should cover most of the work Roberts did internally at DOJ and WH counsel. Much of the executive branch's internal legal work is covered by that privilege, especially in the development of particular legal and policy positions. In highly contentious matters, teams of attorneys often work against each other preparing pro- and con- decision memos, sometimes even mooting the arguments to see how they hold up. The notion that Congress has a right to see this internal work product is extremely distressing to me. I can think of no surer way to force government attorneys into lockstep thinking patterns, than to make them labor under the presumption that their every word will be subject to disclosure to Congress if nominated for office. In short, ambitious liberals would likely be precluded from working as career staff in a conservative administration for fear of doing a good job representing the client, only to be rejected later for having "held" "impermissible" viewpoints. Conservatives - like John Roberts - will be held to a similar standard by liberals. The upshot is, the Estradafication of this process, making all work papers somehow the subject of public inquiry, is a way to ensure no future judges or high appointees ever work their way up through the executive branch. After all, who wants to end their future government service career simply by taking a position in the DOJ Honors Program?
7.30.2005 12:31am
iocaste (mail) (www):
It's always hard to figure out what's going on when lay people like McClellan use legal terms, but the deliberative process privilege is something distinct from attorney client and relates to the ability of governments to shield their ... well, deliberative processes ... from prying eyes. I don't know the contours of the privilege or whether it applies here, but maybe that's what the White House means?
7.30.2005 12:35am
I don't understand why it would be so hard for a nominee to say "I was assigned that position in a moot court process, I wasn't being asked for my personal opinion." Just another example of how every single question is off limits in this hearing, I guess.
7.30.2005 12:51am
Bruce Hayden (mail) (www):

Sure, he could say that, but invariably it would be quoted out of context, with no mention of that. Indeed, we already have this problem to some great extent in briefs, etc. Rarely is a junior attorney asked what he really thinks about an issue. Rather, his job is typically to flesh out a senior lawyer's thoughts or to play devil's advocate.

And of course most of the Democrats on the Senate Judicary Committee know this, being, at least tokenly, lawyers. So, why do they want to see this stuff in the first place? My suggestion is that it is precisely to quote anything the least bit overly conservative against the candidate, relying on the fact that the quote will be much more widely distributed in the media than the fact that it was taken out of context.

As to the suggestion that Senators be given confidential access to this material, same problem. It will be leaked. What good is it for the Demcratic Senators to find something, and then not be able to use it against the candidate? That is the primary purpose of this excercise.

Add to this that it is extremely hard to discipline Senators for this sort of thing, esp. the more powerful ones. For example, there apparently was a DoJ referral for three Senators allegedly disclosing the existance of and problems with a "black" program ("Misty"). The problem is that the referral apparently included the Minority Whip and the Ranking Member (or Co-Chair) on the Intelligence Committee. Disclosing Robert's information is a lot more benign, is more political, and, thus, even less susceptable to discipline.
7.30.2005 2:35pm
Dilan Esper (mail) (www):

I don't think Congressional lawyers represent the executive branch. I also (disagreeing with Ken Starr) do not necessarily think White House counsels represent the entire government, but rather merely the White House.

But the Justice Department DOES represent the government as a whole. I used the example of the DOJ defending congressional statutes, but there are other examples. The DOJ files briefs that represent the position of the "United States". No White House counsel OR Congressional lawyer has the power to do that. The DOJ, of course, prosecutes people on behalf of the United States. It also defends ALL suits against officials of the United States, INCLUDING members of Congress and federal judges, when they are sued in their OFFICIAL capacity.

So the DOJ represents the government. As a result, I don't see ANY basis for a privilege claim by the DOJ on behalf of the executive branch against a congressional subpoena. You may be right that this would be bad policy to reject such a privilege claim, but this isn't a policy question. The DOJ simply does not represent the President or the Executive Branch as its client.
8.1.2005 2:59pm
Colin O'Sullivan (mail):
Does anybody know whether John Roberts' memos were circulated between federal agencies or departments? To the extent that more than one federal agency or department had access to John Roberts' memos, the White House's assertion of an attorney-client privilege may be defeated. The issue is whether inter-agency communications might defeat the assertion of a government attorney-client privilege. As others have here discussed, a court is likely to find that a lawyer representing a government agency only represents that particular agency—not the government as a whole, the public interest, or the head of the agency. See, e.g., United States v. Am. Tel. &Tel. Co., 86 F.R.D. 603 (D.D.C. 1980). In the civil setting, it is also likely that a court will use the corporate attorney-client privilege as a template for the government attorney-client privilege. See Reed v. Baxter, 34 F.3d 351, 356 (6th Cir. 1998), citing Upjohn Co. v. United States, 449 U.S. 383 (1981). My reading of the case law suggests that this is likely the case despite the strong public interest in open and honest government, which suggests differences between the scope of the private and public attorney-client privileges. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 920-21 (8th Cir. 1997); Chesher v. Neyer, 220 F.R.D. 523, 531 (D. Ohio 2004). Accordingly, if inter-agency communications involve a government lawyer who is not acting in a legal capacity those communications are unlikely to be privileged. See United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996); see also Wyoming v. Dep't of Agric., 239 F. Supp. 2d 1219, 1229 (Wy. 2002). Also, as with the corporate attorney-client privilege, in order for the privilege to attach to inter-agency communications the government must demonstrate that confidentiality has been maintained since the time of the communication and maintenance of the privilege since that time. See Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980). Thus, my conclusion is that inter-agency communications are likely to defeat the confidentiality requirement. If it can be shown that John Roberts' memos were circulated to more than one federal agency or between departments, then the White House's assertion of the government attorney-client privilege might be defeated.

(Of course, it seems likely that the common interest or joint defense doctrine could function to preserve the attorney-client privilege in the context of inter-agency communications).

I'm sure I have missed a lot in this cursory analysis, but I would be grateful to hear comments.
8.2.2005 11:18am